United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant For 3M Healthcare Ltd For British Sugar Plc

MS SANDHYA DREW (Of Counsel) Instructed by: Disability Rights Commission 2nd Floor, Arndale House The Arndale Centre Manchester M4 3AQ MR THOMAS KIBLING (Of Counsel) Instructed by: Messrs Eversheds Solicitors 1 Royal Standard Place Nottingham NG1 6FZ MR ADRIAN LYNCH (One of Her Majesty's Counsel) Instructed by: Messrs Geeenwoods Solicitors Monkstone House City Road Peterborough PE1 1JE

NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF ALL OTHER RESPONDENTS.


 


MR JUSTICE LINDSAY (PRESIDENT)

Introduction

1. The appeals in these 4 cases, arranged to come on together, all raise the question of whether Employment Tribunals have jurisdiction to consider complaints of disability discrimination or of victimisation falling within the provisions of the Disability Discrimination Act 1995 where the events complained of occurred after the relationship of employer and employee had ceased between claimant and respondent. In each of the 4 cases the Employment Tribunal ruled it had no such jurisdiction and in each case the applicant below appeals.

Glossary

2. It will be convenient to refer to the Disability Discrimination Act 1995 as "the DDA", to the Sex Discrimination Act 1975 as "the SDA" and to the Race Relations Act 1976 as "the RRA". We will call events that occur or are alleged to have occurred after termination of the employer-employee relationship as "post-termination events". Correspondingly, "pre-termination events" will refer to events that occurred or are alleged to have occurred during that relationship.

The facts

3. On 8th March 2000 Mr Jones lodged his IT1 claiming "(1) Disability Discrimination (2) Victimisation due to having made previous complaints of disability discrimination and sex discrimination". His employment with his respondent, 3M Healthcare Ltd. ("3M"), had ended in November 1997. He put the date of on or after 12th January 2000 to the events of which he complained. His disability, which was not in issue, consisted of severe clinical depression. 3M had refused to return some business cards to him after his employment had ended. He obtained an order in the County Court for their return. He claimed that 3M's initial refusal to return the cards was because he was disabled and that he so was victimised because he had made both disability and sex discrimination complaints during his employment. In its IT3 3M pointed out that Mr Jones's earlier disability, sex discrimination and unfair dismissal complaints had all been dismissed in August 1998 by the Employment Tribunal and that it was not until 12th September 1999 that he had asked for the return of the business cards. 3M had believed the cards belonged to it but had returned them to Mr Jones after the County Court order. 3M then took the point that Mr Jones was outside the protection of the DDA as he was not employed by it at the time of the matters complained of. It also denied Mr Jones's claims on the facts. On 10th April 2000 the Tribunal at Leicester under the Chairmanship of Mr D Price heard the question of jurisdiction; on 3rd May 2000 its decision was sent to the parties; it held that whilst the tribunal did have jurisdiction to hear Mr Jones's complaint as to such victimisation as had been by reason of his previous sex discrimination claims, it had no jurisdiction to hear his claims under the DDA. A review was refused. On 12th June 2000 the EAT received Mr Jones's Notice of Appeal. At the preliminary hearing at the EAT 6th November 2000 both parties were given leave to raise Human Rights Act issues so long as they were adequately foreshadowed in the skeleton arguments which were then directed.
4. On 10th November 1999 Mr Kirker lodged his IT1, alleging victimisation falling within the DDA. He is registered blind. He had been employed by British Sugar Plc till 17th March 1997. In August 1999 he had applied for a job advertised by Ambitions Personnel, an agency. He had not been called by them and learned that they were awaiting a reference from British Sugar, his most recent employer. Ambitions Personnel later told him that his application had failed because of a lack of recent work history. He felt that this failure was discriminatory, as disabled persons often faced greater problems in securing employment. Later still he was told that his job application had failed because he had not worked for over 2 years and because the agency had been unable to obtain a reference from his previous employer. He then took up cudgels with British Sugar, who said they had sent a reference. Ambitions Personnel became first respondent, British Sugar the second, to the IT1. The first respondent took the point that as it had never had any reason to think Mr Kirker was disabled it could not have discriminated against him on that ground and British Sugar, apart from contesting the facts, took the jurisdictional issue that the events complained of occurred, if at all, long after employment had ended. The DDA did not extend, said British sugar, to alleged victimisation of ex-employees. Mr Kirker had successfully brought DDA and unfair dismissal proceedings against British sugar in late 1997 - see British Sugar plc -v- Kirker [1998] IRLR 624 EAT. In June 2000 the Tribunal at Nottingham under the Chairmanship of Mr J.S. Walker heard the preliminary questions that had been raised and on 26th July 2000 its decision was sent to the parties; British Sugar succeeded on the "post-termination" issue and was discharged from the proceedings, which were to continue against Ambitions Personnel. On 4th September 2000 Mr Kirker appealed. He had also had a claim based on pre-termination events that was ruled against as out of time. There is no appeal against that. Ambitions Personnel has taken no part in the appeal.
5. Mrs Angel's IT1 is dated 19th March 2000. She had been employed by her respondent, New Possibilities NHS Trust. She had been dismissed from her nursing post because of back and hip problems in July 1998. She brought some earlier Tribunal proceedings in respect of her dismissal. In a later letter of 12th January 2001 to a prospective new employer of Mrs Angel, the NHS Trust made some references to her that she took to be adverse and which she believed were only made because of her earlier Tribunal proceedings. Her IT1 was taken to be a complaint under the DDA. The NHS Trust took the post-termination point. On 14th August 2000 the Employment Tribunal at Bury St. Edmunds heard that issue and on 21st August 2000 that Tribunal, under the Chairmanship of Mr B.G. Mitchell, dismissed Mrs Angel's case for want of jurisdiction. On 18th September 2000 the EAT received her Notice of Appeal. The NHS Trust put in a skeleton argument but did not appear before us.
6. Miss Bond's first current IT1 was presented on 8th November 1999. She had been employed by Hackney Citizens' Advice Bureau till October 1999 but earlier in 1998, had taken the Bureau to a Tribunal over holiday pay. She had had back injuries from a road traffic accident. Her post was made redundant on 31st October 1999. In her first IT1 she claimed she was victimised on account of her disability. The Bureau denied that her impairment made her a disabled person within the DDA. In January 2000 Miss Bond presented a second current IT1 for breach of contract and unlawful deduction of wages and, on 6th June 2000 a third, for disability discrimination. The third IT1 asserted that since being dismissed she had been victimised as, contrary to its usual practice, the Bureau had refused to provide her with a reference. The Bureau's IT3 took the post-termination point. On 4th-6th October 2000 the Tribunal at London Central under the Chairmanship of Mr M.S. Rabin heard only the third IT1 and its decision, sent to the parties on 25th October 2000, dismissed her claim "since she was not a person who the Respondent was employing at the relevant date". On 6th December 2000 Miss Bond's Notice of Appeal was received; it was later amended to include that the Tribunal had failed to consider a pre-termination claim which it was said Miss Bond has raised, namely that she had requested a reference whilst still employed (albeit under notice) and had been given one which was discriminatory. Alone amongst the cases before us, Miss Bond's Notice of Appeal thus raises a separate issue as to a pre-termination event, an issue we shall deal with separately.
7. On 3rd May 2000 I gave directions in Chambers in the Jones, Kirker and Angel appeals, for all 3 to come on together. On 12th June 2001 the Bond appeal was directed to come on with the other 3.
8. Before us Miss Drew has appeared for all appellants, who have the support of the Disability Rights Commission ("the DRC"). Mr Kibling appears for 3M and Mr A. Lynch Q.C. for British Sugar; they divided respondents' arguments between them and adopted each other's. No other respondent is represented.

The law (1) Construction of the Statutory Provisions.

9. An understanding of the law on the post-termination issue requires a chronological approach.
10. In July 1993 the EAT under Knox J. heard Nagarajan -v- Agnew, a case under the RRA. Mr Nagarajan, of Indian birth, had brought a number of complaints to the Tribunal based on race. A settlement was reached on or about 1st November 1989 in full and final settlement of all his claims arising out of his employment with London Underground Ltd.. His employment by LUL had ceased by then. Mr Nagarajan, after a spell of unemployment, applied for a job with LUL's holding company, LRT.. Mr Agnew, a manager, on being asked to fill in a form about that application, firmly recommended against Mr Nagarajan's re-employment. LRT rejected the job application. Mr Nagarajan, amongst his other proceedings, then presented an IT1 against LRT, claiming racial victimisation by reason of his earlier discrimination proceedings. The victimisation claim succeeded at the Employment Tribunal. LRT appealed. The EAT cited section 4 of the RRA which, then as now, provided:-

"4. Discrimination against applicants and employees

(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -

(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b) in the terms on which he offers him that employment; or

(c) by refusing or deliberately omitting to offer him that employment.

(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -

(a) in the terms of employment which he affords him; or

(b) in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c) by dismissing him, or subjecting him to any other detriment."

Section 78 of the RRA, the definition section, was then as it is now so far as concerns its definition of employment as:-

"employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly."

The judgment of the EAT in Nagarajan -v- Agnew continued, at para 34 in the IRLR report at [1994] IRLR 61:-

"On the view we take of the [RRA] there is in our view a fundamental flaw in the [Employment] Tribunal's decision ..... in the finding that s. 4 (2) (c) applied to confer a remedy on Mr Nagarajan, because the employment relationship was not subsisting at the relevant time and that seems to us fatal to the validity of the decision."

Mr Nagarajan had submitted - see para 24 - that section 4 (2) (c) was broad enough to include the post-termination infliction of a detriment "by some act which is referable to the period when the employment relationship subsisted". The EAT then looked at the events provided for in section 4 (2) and at the natural meaning, as it took it to be, of the phrase "a person employed by him, namely - see para 26:-

"That the employer is discriminating against the employee at a time when there is an employment relationship subsisting between them."

Accordingly the EAT concluded that on its true construction section 4 (2) (c) of the RRA was limited to events occurring during the subsistence of the relevant employment - para 27. This Nagarajan case was reported in the February 1994 issue of IRLR and, in June 1995, at [1995] ICR 520, before, it is to be noted, the DDA was enacted on 8th November 1995.

11. Next in the chronology comes Adekeye -v- The Post Office (No. 2) [1995] IRLR 29 EAT reported on 6th June 1995. The EAT held that the expressions, in section 4 (2) of the RRA, of "person employed" and "employee" could not be construed to include a former or ex-employee. The EAT also drew attention to the feature that the then-subsisting antecedent of the present section 230 of the Employment Rights Act 1996, in its definition of "employee" expressly included persons who, where the employment had ceased, "had" worked under "a contract of employment". The legislature plainly knew how to deal with former employment when it chose to do so - compare section 68 of the DDA infra. Again, the case was reported before the enactment of the DDA. Mr Adekeye appealed.
12. The Court of Appeal heard the appeal in Adekeye in 1996, after the enactment of the DDA. Their judgment is dated 13th November 1996. It is reported at [1997] IRLR 105. It held that whereas the expression "in the case of a person employed by him" was grammatically ambiguous as "employed" could there be either a past participle passive or a present participle passive, when the full section was considered, then:-

"... giving the words "in the case of a person employed by him" their ordinary and natural meaning in their context, those words mean, and can only mean, "in the case of a person who is employed by him"

per Peter Gibson L.J. at paras 13 and 17. Nagarajan -v- Agnew was agreed with. An argument that the RRA had to be construed so as to achieve consistency with the aims of the Equal Treatment Directive and that that somehow required the RRA to protect ex-employees in some material way failed - paras 20 and 21. Pill L.J. and Hurst L.J. agreed that to construe section 4 (2) to protect ex-employees "would ... be to rewrite a statutory provision bearing a clear meaning" - paras 25 and 26.

13. Next comes Coote -v- Granada Hospitality Ltd. decided on 22nd September 1998 by the European Court of Justice - see [1995] IRLR 656. Ms Coote had brought a complaint about her dismissal against Granada under the SDA, claiming she had been dismissed because of her pregnancy. That case was settled. 10 months later she brought fresh proceedings, claiming that she had been refused a reference and that the refusal represented victimisation under the SDA. The Employment Tribunal, understanding itself to be following the RRA case of Adekeye, held that it had no jurisdiction. On appeal the EAT referred questions to the ECJ. The ECJ relied on the Council Directive 76/297 EEC, the Equal Treatment Directive. It held (at para 24) that:-

"The principle of effective judicial control laid down in Article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment."

Accordingly - para 28 - Member States were required to introduce such measures as would be necessary to ensure judicial protection for workers whose employer, after the employment relationship had ended, refused to provide references as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment within the meaning of the Directive. The matter accordingly reverted to the EAT.

14. In Coote -v-Granada Hospitality Ltd. (No. 2) [1999] IRLR 452 the EAT considered section 6 (2) of the SDA which, in the reference to a person "employed by him" corresponded to section 4 (2) of the RRA. It did not feel that Adekeye supra constrained it and in any event accepted the supremacy of the ECJ's decision - para 26. It remitted Ms Coote's complaint to the Employment Tribunal for a fresh hearing on the footing that there was jurisdiction notwithstanding that a post-termination event was what was complained of.
15. In Rhys-Harper -v- Relaxion Group plc [2001] IRLR 460 Ms Rhys-Harper's employment had ended not later than 22nd October 1998 following a letter of dismissal from her employer. She unsuccessfully thereafter pursued an internal appeal against her dismissal. In the course of that appeal (and thus after termination) she alleged to the employer that during her employment her manager had sexually harassed her. Her complaint to the Tribunal, though, was, as it would seem, a complaint of a post-termination event, the failure of the employer properly to respond to her post-termination complaint to it. We shall revert to a puzzling feature of Rhys-Harper below. The EAT had dismissed her claim, following Adekeye in doing so. The Court of Appeal studied Adekeye and Coote (both at the ECJ and the EAT). Pill L.J. held that the reasoning in the ECJ's judgment in Coote was limited to cases where the employer had reacted to proceedings brought by employees to enforce compliance with the Equal Treatment Directive. It did not otherwise bear on whether an act of discrimination during employment could be complained of post-termination (which was the case before Pill L.J., as he saw it) - para 11. Adekeye was left undisturbed; Pill L.J. said that the EAT had been correct to follow it - para 19 - and Buxton L.J. found it entirely persuasive - para 25. Buxton L.J. concluded, at para 28:-

"...., on the authority of Adekeye, that section 6 (2) of the 1975 Act does not, on its true construction, extend to acts or events occurring after the termination of employment."

16. Finally there is d'Souza -v- London Borough of Lambeth [2001] EWCA Civ 794 handed down by the Court of Appeal on 25th May 2001. Mr d'Souza claimed that as an act of racial victimisation taken against him by reason of earlier Tribunal proceedings which he had brought against it, Lambeth had refused to re-instate him. Schiemann L.J., giving the judgment of the Court and speaking of the decisions of the Employment Tribunal and the EAT in the matter, where Mr d'Souza had lost on jurisdiction, said:-

"They were clearly reluctant to come to their conclusion but held that they were bound by a previous decision of this Court: The Post Office -v- Adekeye ... That was a decision which this Court at the time regarded as unsatisfactory but inescapable in the light of the wording of s. 4 of the [RRA]. It is, however, fair to point out that, despite that expression of dissatisfaction by this Court, Parliament in passing the Race Relations (Amendment) Act 2000 has not seen fit to alter s. 4 of the earlier Act in any relevant respect."

17. Schiemann L.J. then looked at Rhys-Harper supra. He concluded that the Court of Appeal was bound by Adekeye, as reinforced by Rhys-Harper, which also bound the Court of Appeal. Permission to appeal to the House of Lords was refused. We have been told that provisional leave has been granted by the Committee of the House of Lords.
18. It has to be remembered that there is no general statutory tort of disability discrimination but rather that, whilst disability discrimination is given a wide meaning, it is only made unlawful in specific and defined fields - see e.g. Abbey Life Co. Ltd. -v- Tansell [2000] IRLR 387 CA at paras 23-26, a case where Mummery L.J. cites Lord Diplock's reminder that:-

"When the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or are unjust or immoral. In controversial matters such as are involved in industrial relations, there is room for difference of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution it is Parliament's opinion on these matters that is paramount."

- see Duport Steels Ltd [1980] IRLR 116 at 117 and Abbey Life supra at paras 28-30, referring also to Lord Nicholls in Inco Europe Ltd. -v- First Choice Distribution [2000] 1 W.L.R. 592 E-F.

19. In consequence of this history as to the construction of the SDA and RRA we consider ourselves bound by decisions of the Court of Appeal to the following effect:-

(i) The references, in section 6 (2) of the SDA and section 4 (2) of the RRA to a person "employed by him", whilst grammatically ambiguous, can in full context can be read, as to jurisdiction, to permit, as a rule, claims to be made only by persons employed by the respondent employer as at the date of the discriminatory event complained of;

(ii) That there is a limited exemption to that rule namely that where, in reaction to an earlier complaint in which an employee had sought to enforce one or more principles of the Equal Treatment Directive, the erstwhile employer retaliates against the employee on that account, then there is no jurisdictional defence to the former employee's timely proceedings as to that retaliation such that it is to be barred either because the event occurred, or because the complaint was made, only after the employment relationship had ended;

(iii) That no other exception to the rule has so far been identified.

20. Mr Lynch's argument, going, in this respect, further than it strictly need, includes that section 4 (2) of the DDA protects only current employees, persons in the relevant employ at the point of complaint. Confusion can creep in here because, whilst a complaint based on post-termination events can only be made post-termination and thus, in that sense, only by an ex-employee, a post-termination complaint may, of course, rely, wholly or in part, on pre-termination events.
21. Nagarajan supra at the EAT was concerned with a claim based on post-termination events. The employment had ended by the 1st November 1989 - p. 526 a-c; p. 529 c-d. The events complained of began on the 21st September 1990 - p. 529 d. The case addressed whether there had to be a subsisting relationship of employment at the time when the events complained of occurred - p. 530 f; p. 531 c-d.
22. So also in Adekeye supra the complaint was based wholly on post-termination events. Miss Adekeye was dismissed on the 8th June 1991. She thereafter appealed and her claim was that there was discrimination in the conduct of that appeal, conduct which could have occurred only after her dismissal. Adekeye in the Court of Appeal had no need to address whether a complainant had still to be an employee at the time of his complaint and, whilst, out of context, some passages in the judgment of Peter Gibson L.J. could be thought to be dealing with the nature of the claimant rather than the nature of the claim, his acceptance of Nagarajan at the EAT plainly showed that it was the latter that was in mind. Further, Pill L.J., at para 25 p 109, agreeing with Peter Gibson L.J., makes it clear that what the Court was dealing with was whether persons were protected in respect of post-termination events rather than with whether a post-termination complaint could not be entertained simply by reason of it being made by an ex-employee, even if it was based on pre-termination events. He said (with our emphasis):-

"I too consider the result to be unsatisfactory but, for the reasons given by Peter Gibson L.J., s. 4 (2) of [the RRA] protects only those whose employment continues at the time of the act of discrimination."

23. A little confusion, though, begins in Rhys-Harper. The complainant was dismissed by a letter of the 15th October 1998. The EAT held that the dismissal was not later than the 22^nd October 1998. Ms Rhys-Harper complained of sexual discrimination (harassment) to her employer on the 9th November 1998 but her complaint to the Employment Tribunal was not the sexual harassment itself but the employer's discriminatory conduct in not properly investigating and therefore dismissing her complaint to him - see [2000] IRLR 810 EAT paras 2 and 3. The failure adequately to investigate could not have been earlier than the 9th November and hence her complaint to the Tribunal was based on wholly post-termination events. At the EAT it was thus recognised that the question was whether employment had to subsist "at the time of the act of discrimination" - para 11, p. 811 - a question on which it was bound by Adekeye. However, in the Court of Appeal Pill L.J. (but not Buxton L.J.) seems to have regarded Ms Rhys-Harper's IT1 as if it had contained or included a complaint as to harassment "during the relevant employment but when the complaint about that conduct was not made until after the employment had terminated" - para 2, p. 461 and see also para 11, p. 462. Pill L.J. held that the Employment Appeal Tribunal had been right to follow Adekeye - para 19, p. 463. That is puzzling, firstly, because Ms Rhys-Harper's IT1 had been found by the EAT to be based on post-termination events and there seems to have been no appeal in that respect and, secondly, because Adekeye, which it was said that the EAT had been right to follow, had not dealt with the question of whether a complainant needed still to be an employee at the date of his or her complaint. However, by contrast, Buxton L.J. saw the issue before the Court of Appeal as being whether the statute, there the RRA, protected acts occurring after employment had ended - para 25. He held - para 28 - that it did not, following Adekeye in that respect. He recognised, in effect, that Ms Rhys-Harper's IT1 complaint to the Tribunal was that her earlier complaint to the employer should have been taken seriously - para 36, p. 464. That was a complaint to the Tribunal as to events that could not have occurred earlier than the 9^th November, when the complaint to the employer was made. The IT1, in other words, was, as he saw it, wholly in respect of post-termination events.
24. D'Souza's case was, again, one of an attempt to rely wholly on post-termination events.
25. If this analysis is right then there is, in our view, no binding Court of Appeal or, indeed, EAT authority on whether a complaint is barred, even where the events complained of occurred during the subsistence of the employment, by reason only of the complaint to the employer or Employment Tribunal being lodged only after that employment had ceased. We are bound to say, although no doubt this is obiter, that we see no reason to deny jurisdiction to a former employee's timely claim under section 4 (2) of the RRA (or the corresponding provisions of the SDA and DDA) to the extent to which it is based on pre-termination events.
26. Against that background of authority on the other Acts we turn to the DDA, section 55 and section 4 (2) which provide:-

"55 Victimisation

(1) For the purpose of Part II or Part III, a person ("A") discriminates against another person ("B") if -

(a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B's; and

(b) he does so for a reason mentioned in subsection (2).

(2) The reasons are that -

(a) B has -

(i) brought proceedings against A or any other person under this Act; or

(ii) given evidence or information in connection with such proceedings brought by any person; or

(iii) otherwise done anything under this Act in relation to A or any other person; or

(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or

(b) A believes or suspects that B has done or intends to do any of those things.

(3) Where B is a disabled person, or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (1) (a).

(4) Subsection (1) does not apply to treatment of a person because of an allegation made by him if the allegation was false and not made in good faith.

4. Discrimination against applicants and employees

(1) .............

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d) by dismissing him, or subjecting him to any other detriment."

The interpretation section, section 68, defines employment, subject to any prescribed provision, as "employment under a contract of service or of apprenticeship or a contract personally to do any work and related provisions are to be construed accordingly".

27. Subject to the striking difference we shall next mention, section 4 (2) of the DDA, whilst differing from section 4 (2) of the RRA and section 6 of the SDA in modest ways, is broadly to corresponding effect. Indeed, where the language permits, Courts and Tribunals are encouraged to see all 3 Acts as a trilogy containing similar provisions such that it is permissible to consider the other two in the construction of any one of them - see Lord Bingham in Anyanwu -v- South Bank Union [2001] 1 WLR 638 para 2; [2001] IRLR 305 at 306 para 2. But the striking difference is that instead of the grammatically ambiguous "person employed by him" in the SDA and the RRA, we now find "whom he employs".
28. That is emphatically a change to the present tense by the legislation, one not apparently prompted or necessitated by any reason other than an intention to move to the present tense. Moreover, if the context of the rest of the language of the SDA and RRA provisions was rightly held by the Court of Appeal to point to a need for present employment at the time of the discriminatory event complained of, we cannot see the DDA context as pointing otherwise. Further, as we have seen from the chronology, the change was made at a time when the ambiguity of "employed by him" had been noted by both Employment Tribunals and by the EAT in reported cases.
29. Miss Drew argues that "whom he employs" is ambiguous and can mean "whom he engages" or "whom he takes on" and that it thus matters not whether the person taken on remains in employment at the time of the events complained of. But that is not what the statutory words say and, even if one could so read "whom he employs", that approach begs questions such as "What if he is no longer engaged? What if he is not now still taken on?" Having first said that "whom he employs" may mean "whom he takes on" then to achieve her goal Miss Drew has to add "or shall at some earlier stage have taken on". If this ambiguity is alleged to exist as to "whom he employs", it would have been even more available in Adekeye, where the words "employed by him" could have been taken to mean, if Miss Drew is right, "once taken on by him"; they were not so construed by the Court of Appeal.
30. Moreover, whilst, in section 4 (2) of the DDA as it is framed, with its reference to "an employer" and "a disabled person whom he employs", it is easy enough to see that it is referring to acts by the employer as such, if section 4 (2) had been intended to cover post-termination events one could reasonably expect to find some provision to ensure that it was only post-termination events in some way referable to the earlier employer-employee relationship that could be asserted to be discrimination. Further, as Mr Kibling and Mr Lynch urge, if post-termination events were to be capable of being relied upon by a claimant, one could reasonably expect Parliament, which had laid down a tight 3-month timetable for complaints in Schedule 3 para 3 of the DDA, to make some specific provision for post-termination complaints. Otherwise, so long as the complaint was made to the Tribunal within 3 months of the post-termination event complained of, the complaint would be justiciable even if the employment relationship had ended say 7 or 20 years before. Had that been intended it would be remarkable had not special provisions been introduced to regulate late post-termination complaints, yet none is to be found. Provisions might also have been expected to describe what post-termination events were to be admissible as sufficiently referable to the former employer-employee relationship as to be actionable. There is nothing of the kind. Nor is there anything in the Code of Practice issued by the Secretary of State on the 25th July 1996 (after he had laid a copy therefore before Houses of Parliament) that suggests that a post-termination event can be relied upon. The Code is entitled "For the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability". There is repeated reference in it to employment, to employers and to employees without anything that suggests that former employers are vulnerable to, or former employees able to rely upon, post-termination events.
31. We see Miss Drew's argument to be an invitation that we should invent a fancied ambiguity of the kind which Lord Diplock warned against in Duport Steels supra. We reject the argument; there is no such ambiguity.
32. Miss Drew next argues that to make justiciability depend on whether pre or post-termination events are asserted is unworkable. The exact date of termination and the exact date of the events complained will often be unclear, especially where the events depend on a state of mind such as the formation by an employer of an intention to retaliate by reason of an earlier complaint by an employee or former employee. Jurisdiction should not be to difficult, she says, to determine; an employee's protection should not be left so difficult to ascertain. We see the force of this but do not see it as a factor of such a strength as to enable the unambiguous provisions of the DDA to be ignored. That the law could, if Parliament so chose, be improved upon is not an argument that it is other than it is and it is notable, as Schiemann L.J. pointed out in d'Souza supra, that in the Race Relations (Amendment) Act 2000 Parliament did not choose to amend section 4 (2) of the RRA.
33. Miss Drew refers us to Harrods Ltd. -v- Renwick [1997] IRLR 580 CA where women contract workers working within the Harrods department store but employed by concessionaires were enabled to claim racial discrimination against Harrods. It was possible on the facts of that case to read the provisions in section 7 of the RRA as to contract workers ("This section applies to any work for a person ("the principal") ....") so as to conclude that the women worked "for" Harrods - see para 22. No ambiguity needed to be asserted; Sir Richard Scott V-C, giving the judgment with which Waite and Ward L.J.J. agreed, said, after setting out the facts:-

"Against this background, the work done by the staff members can, in the ordinary use of language, properly be described as "work for" Harrods."

Miss Drew goes on to shew the Vice-Chancellor then moving from Lord Templeman's well-known dictum in Savjani -v- Inland Revenue Commissioners [1981] Q.B. 458 at 466-7 to his determination to give section 7 (1) a construction -

"... that is not only consistent with the actual words used but also would achieve the statutory purpose of providing a remedy to victims of discrimination who would otherwise be without one."

Miss Drew refers also to observations, again derived from Savjani, in Sawyer -v- Ahsan [1999] IRLR 609 EAT at 611. However, Lord Templeman's dictum cannot be read so that anything discriminatory is, without more, actionable. If that were the case section 55 and section 5 of the DDA would have sufficed and section 4 would have been not just redundant but confusing. So also in the SDA sections 1-4 would have sufficed and section 6 unnecessary and in the RRA sections 1-3 would only have been confused by the presence of section 4. Lord Templeman's dictum, spoke of the RRA as brought in:-

".... to remedy a very great evil. It is expressed in very wide terms and I should be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act."

We would wish only to endorse that, but it is not a licence to enable plain statutory words to mean other than as they do. Further, it is not the case that the appellants before us would in all cases be left without any remedy at law if relief under the DDA were denied them. An employee denied a reference despite asking for one after his employment has ceased or then given a false or misleading one is not bereft of remedy; there is a duty of care on the employer's part to provide a reference which is neither false nor misleading, a breach of which is actionable in the ordinary Courts as negligence - see Bartholomew -v- London Borough of Hackney [1999] IRLR 246 CA; Kidd -v- Axa Equity & Law Life Assurance Society plc [2000] IRLR 301 EAT and Cox -v- Sun Alliance Ltd. [2001] IRLR 448 C.A..

34. At this point in the argument the Appellants' cases, in point only of statutory construction, seems to invite dismissal. There is no right of domestic origin enabling an ex-employee to complain of disability discrimination or victimisation under the DDA by his former employer to the extent that the complaint is based on post-termination events. Miss Drew then turned away from the DDA to invite us to look at Convention Rights.

The law; (2) Convention Rights

35. As to Convention Rights Miss Drew argues that regard must be paid to a number of such rights or combinations of them and that the domestic legislation must be construed consistently with such rights and to avoid breach of them.
36. First we are invited to look at Article 6 ("Right to a fair trial"). This has two limbs; that there should be a fair and public hearing looking into whether the appellants have relevant civil rights and, secondly, if any such rights are found, a fair and public hearing of the attempts to exercise them. As to the former, to the extent, if any, that Human Rights' arguments were pursued there, at the Employment Tribunal and, we hope, here, there has been a serious attempt to find whether any relevant civil right exists. As to the latter, there is not yet any freestanding convention right not to be discriminated against or victimised on grounds of disability. Nor, it may be added, is there even any Community Directive to the same end. We have already ruled that there is no wholly domestic right of the appellants to complain of post-termination disability discrimination. Article 6 is thus of no assistance to the appellants and nothing in Z and others -v- The United Kingdom in the ECHR, 10th May 2001 (No.29392/95) helps them to shew a breach of it.
37. Then we were taken to Article 6 in conjunction with Article 14. However, whilst Article 14 is, so to speak, against discrimination, the discrimination it is concerned with is discrimination in the enjoyment of other Convention Rights. Given that Article 6 is not here infringed, the joinder of Article 14 adds nothing.
38. Next we have Article 13. Its deployment depends upon the claimant shewing a violation of some other right or freedom set forth in the European Convention on Human Rights. That has not been shewn.
39. Then Miss Drew relied on Article 8 (Right to respect for private and family life) and Botta -v- Italy ECHR (153/1996/973), which illustrates that the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. Despite the width of the language in the Article, we have not found it possible to see the facts in any of our 4 cases as falling within it. As for Mr Jones' case, Miss Drew also relies on the Protocol of 20th March 1982, Article 1 as amended (peaceful enjoyment of possessions). However, Mr Jones has already successfully asserted his right to his possessions - the business cards - by obtaining an order in the County Court for their return and his current proceedings are not concerned with the deprivation of a right to possession but with the motivation which he alleges lies behind a delay in possession being restored to him.
40. Miss Drew also relies on Article 3 (Torture and inhuman or degrading treatment). A breach was found in Price -v- United Kingdom ECHR (33394/96) where the applicant, four-limb deficient because of thalidomide, was detained in a police cell in conditions where she was dangerously cold, risked developing sores because her bed was too hard or unreachable and was unable to go to the toilet or keep clean without the greatest of difficulty. There is no conceivable parallel between such a case and, for example, a failure to supply a post-termination reference or an initial refusal to return business cards.
41. In addition to these difficulties Mr Lynch and Mr Kibling point out, firstly, that the relevant events, including the Employment Tribunal judgments, in 3 of the 4 cases, were all before 2nd October 2000, when the Human Rights Act came into effect. The only relevant events after that are the Tribunal's judgment in the Bond case and this judgment. However, the Act, save where it otherwise expressly provides, is not retroactive and it would ordinarily be no breach by us or by the Bond Tribunal, after the Act, to rule, as public authorities, on events which occurred before the Act came into effect, inconsistently with a Convention Right (even were one to be found) - see R.V. Lambert [2001] 3 All ER 577 H.L. and Pearce -v- Governing Body of Mayfield Secondary School [2001] IRLR 669 C.A.. Secondly, the obligation on us is not in absolute terms to read and give effect to our domestic legislation in a way which is compatible with Convention Rights but to do so only "So far as it is possible to do so" - HRA section 3 (1). Having found no ambiguity but clear legislative provisions and authority which we cannot escape, both precluding complaint based only on post-termination events, we have to regard any other reading as not possible for us to achieve. Thirdly (although we do not intend to go into this any further) it is far from clear how far the arguments presented to us represent arguments which should be denied to the appellants as being arguments that were not raised below. In the result the DRC's invocation of Convention Rights no more helps the Appellants than does the statute.

Miss Bond's separate case;

42. In Miss Bond's case Miss Drew has a separate argument that the Employment tribunal had failed to deal with part of Miss Bond's case, namely that she had a complaint as to a pre-termination event, the refusal of a reference. No such claim is made in her IT1 of the 8^th November 1999. None was made, either, in her IT1 of the 12th January 2000. There she says (with our emphasis):-

"The Applicant refers to proceedings she has previously commenced for disability discrimination (under case No. 2200922/99) [the IT1 of the 8th November 1999]. The Applicant now alleges that, since commencing those proceedings, and since being dismissed, she has been victimised by the Respondent, contrary to .... [the DDA] in that -

1. Contrary to its standard practice, the Respondent has refused to provide her with a reference and ..."

That complaint is plainly one based on a post-termination event. All three of her IT1s were supported by a witness statement of some 20 pages. It is not, however, for the Employment Tribunal to ferret through a witness statement to see whether there could have been some claim not expressed, however briefly, in the IT1. Moreover, the Tribunal found that Miss Bond's employment had terminated on the 30th October 1999. The Chairman of the employer, NACAB, Jane Aspden, had sent to Miss Bond's Union representative on the 24th August 1999 a "draft" standard reference for Miss Bond, one which she said the CAB would be happy to provide for her. That was a reference which said that Miss Bond had worked until a date when she had accepted voluntary redundancy, that she was very knowledgeable in her area of expertise and one in which the Director of the local CAB could say "we have found her to be competent and able in this area of work", referring to her work as a consumer adviser. Miss Bond felt that that reference was:-

"Wholly inadequate and was much more terse than references which I know have been provided for employees with much less knowledge and experience than me."

The next stage, according to Miss Bond's witness statement, was on the 17th November, namely on a date after the termination of her employment, when her Union representative forwarded to her former employer a draft reference which Miss Bond herself had prepared, with a request that this new draft should be used in future. Jane Aspden, according to Miss Bond's witness statement, failed to reply. Miss Bond in her witness statement continued that she believed that the failure to provide with her with an adequate reference represented a victimisation contrary to the DDA. Plainly this was no fertile ground for a claim based on pre-termination events, events on or before the 30th October 1999. Before that date a draft reference, said to be standard and not on its face adverse, had been offered. It was only after employment had ceased, on or after the 17th November, that there was a further failure on the CAB's part, if so it could be described.

43. We do not know how the matter was argued at the Tribunal. Although Miss Bond was then represented by Counsel, as was the CAB, neither of those Counsel appears before this Tribunal. However, the extended reasons in the Tribunal's decision in Miss Bond's case clearly say that the preliminary hearing was to deal with a claim that Miss Bond had been victimised contrary to section 55 of the Disability Discrimination Act:-

"In that the Respondents refused to provide her with a reference and that they gave false information in replying to inquiries received from two companies which should have insured the Applicant's property in respect of mortgage repayments, all of these allegations relating to periods after Miss Bond's employment with the Respondent had come to an end."

We have no reason to believe that that did not represent the way in which the case was argued below. On that footing there was no error by the Tribunal in failing to deal with a claim based on pre-termination events as none such was advanced. It would be wrong to remit in order that a claim based on pre-termination events should be ruled upon where no such claim had been advanced at the Tribunal below. Accordingly we dismiss Miss Bond's appeal based on this argument, special to her.

Conclusion

44. To revert to the questions with which we began, upon our having found no domestic, Community or Convention law to enable us to find in the Appellants' favour, we must dismiss the appeals. As the Court of Appeal has commented in relation to the RRA, such a conclusion is unsatisfactory, but, if there is any escape other than by legislative amendment, it lies only, as it seems to us, in the House of Lords. If we are right in understanding that the RRA case, d'Souza, has been given leave to go to the House of Lords, it may be that the Court of Appeal or the House of Lords would think it right that these DDA cases should be considered by their Lordships' House at the same time. Assuming that the DRC will wish to pursue the Appellants' cases to the Court of Appeal, we give leave for them to do so.